Travis County Attorney v. J.S.H.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00533-CV

NO. 03-99-00534-CV

Travis County Attorney, Appellant

J.S.H., Appellee

and

C.E.G.K., Appellee

FROM THE DISTRICT COURTS OF TRAVIS COUNTY, 147TH & 299TH JUDICIAL DISTRICTS, NOS. 98-12297 & 98-03658, HONORABLE WILFORD FLOWERS &

HONORABLE JON WISSER, JUDGES PRESIDING

DISSENTING OPINION

The majority holds that an admitted, unadjudicated offense, when taken into account under section 12.45 of the Penal Code in determining the sentence for an offense of which the defendant stands adjudged guilty, does not "result in" a "final conviction" as those terms are used in the expunction statute, article 55.01 of the Code of Criminal Procedure. See Tex. Penal Code Ann. § 12.45 (West 1994); Tex. Code Crim. Proc. Ann. art. 55.01 (West Supp. 2001). Because I disagree with this conclusion, I respectfully dissent.

The majority bases its holding on the self-evident proposition that there cannot be a final conviction without an adjudication of guilt. See McNew v. State, 608 S.W.2d 166, 172 (Tex. Crim. App. 1978). I agree with that proposition, but I do not believe it is material to the issue at hand.

THE LANGUAGE OF THE STATUTE

Courts construing section 12.45 have reached contrary conclusions on whether the offense consumed by that provision--the unadjudicated offense--results in a "final conviction," depending upon the context in which the case arises. Compare Perea v. State, 870 S.W.2d 314, 318 (Tex. App.--Tyler 1994, no pet.) (witness in criminal case may be impeached by evidence of section 12.45 offenses since prosecution of unadjudicated offense was "finally concluded by judgment of conviction" in primary case), and Lester v. State, 824 S.W.2d 775, 778 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd) (jeopardy attaches and prosecution of offense admitted under section 12.45 is prevented), with Hilburn v. State, 946 S.W.2d 885, 886 (Tex. App.--Fort Worth 1997, no pet.) (because there is no "judgment of conviction," defendant does not have right to appeal section 12.45 disposition), and Day v. State, 784 S.W.2d 955, 957-58 (Tex. App.--Fort Worth 1990, no pet.) (admitted section 12.45 offense is not grounds to disqualify juror because juror does not stand convicted of the unadjudicated offense).

The majority reads article 55.01(a)(2)(B) of the Code of Criminal Procedure as if it said that expunction is available as long as the unadjudicated charge has not resulted in a final conviction of that particular offense. The statute contains no such requirement, however. Rather, the provision is worded in such a way that expunction is available if the unadjudicated offense has resulted in any final conviction. "Result in" simply means to cause or produce. As the majority itself notes, the assessment of punishment is an essential part of a final conviction.

Several courts have held that when a trial court takes an admitted, unadjudicated offense into consideration for sentencing on the adjudicated offense, the unadjudicated offense becomes an integral part of the final judgment of conviction in the adjudicated offense. Indeed, the court of criminal appeals has stated:

Under . . . § 12.45 a defendant must admit his guilt of an unadjudicated offense before it can be taken into account for assessing punishment for a charged offense. Such admission, when taken into account, will bar prosecution for the admitted unadjudicated offense. It is logical that when such action is taken it should be included in the formal judgment.

Whalon v. State, 725 S.W.2d 181, 195 (Tex. Crim. App. 1986) (op. on reh'g); see also Woodard v. State, 931 S.W.2d 747, 750 (Tex. App.--Waco 1996, no pet.) (offenses admitted to enhance sentencing on conviction "became part of that judgment and part of [defendant's] criminal record"); Murray v. State, 840 S.W.2d 675, 679 (Tex. App.--Tyler 1992, no pet.) (where defendant had admitted guilt to four offenses and asked that admissions be taken into consideration in sentencing on adjudicated offense, those admitted offenses became "part of the judgment of conviction, admissible as part of [defendant's] criminal record").

I agree with those courts holding that a defendant's admission of guilt of an unadjudicated offense becomes an integral part of the judgment of conviction of the adjudicated offense. Such a judgment obviously is a final conviction of the adjudicated offense. In the present case, because the admissions of guilt of the unadjudicated offenses were considered in determining the punishment for the adjudicated offenses and became an integral part of those judgments, the unadjudicated offenses necessarily "resulted in a final conviction" as that phrase is used in the expunction statute. Accordingly, J.H.S. and C.E.G.K. have not satisfied the requirements of article 55.01(a)(2) and are not entitled to expunction of their arrest records.

POLICY CONCERNS

Moreover, I believe the majority's holding subverts the narrow purpose of the expunction statute. When interpreting a statute, whether or not ambiguous, a court may consider the object sought to be obtained. See Tex. Gov't Code Ann. § 311.023(1) (West 1998). Article 55.01 expressly states that where the charged offense is a felony, expunction is available only if no charges were brought or, if the person has been presented with an indictment or information, "the court finds that it was dismissed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void." Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A). Thus, for felonies, the plain language of the statute clearly limits the availability of expunction to charges lacking probable cause or stemming from wrongful arrests.

Courts addressing the legislative intent behind article 55.01 have extended the same rationale when applying that article to misdemeanor offenses as well. For example, where a person sought expunction of a misdemeanor charge of possession of a controlled substance, the supreme court wrote that "[t]he legislature intended section 55.01 to permit the expunction of wrongful arrests." Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991) (emphasis added); see also State v. Knight, 813 S.W.2d 210, 212 (Tex. App.--Houston [14th Dist.] 1991, no writ) (where person sought expunction of one misdemeanor and two felony charges, "[a]rticle 55.01 was enacted to enable persons who are wrongfully arrested to expunge their arrest records"). There is no allegation or proof in this record that J.S.H. or C.E.G.K. was wrongfully arrested for the unadjudicated offenses. Quite the contrary, both admitted their guilt of the charges.

Finally, I believe that complete and accurate records of past criminal activity serve an important public purpose. As the supreme court explained in J.T.S.:

[A] court may consider the consequences that may flow from a particular construction, presuming that a just and reasonable result is intended and that the public interest is to be favored over any private interest. . . . The public has an important interest in arrest records being kept for use in subsequent punishment proceedings, including subsequent applications for probation. These records are valuable to document and deter recidivism.

J.T.S., 807 S.W.2d at 574. To allow expunction of all records of admitted crimes would deny a valuable resource to law enforcement officials and other members of the criminal justice community. I cannot believe that the legislature intended to make expunction available in cases such as the present ones.

I would hold that J.S.H. and C.E.G.K. are not entitled to expunction of records related to the admitted, unadjudicated offenses and would reverse the judgments of the trial courts and render judgment in both causes denying expunction.

J. Woodfin Jones, Justice

Before Justices Yeakel, Patterson and Jones^*

Filed: January 11, 2001

Publish

^* Before J. Woodfin Jones, Justice (former), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 75.003(a)(1) (West 1998).

gree with those courts holding that a defendant's admission of guilt of an unadjudicated offense becomes an integral part of the judgment of conviction of the adjudicated offense. Such a judgment obviously is a final conviction of the adjudicated offense. In the present case, because the admissions of guilt of the unadjudicated offenses were considered in determining the punishment for the adjudicated offenses and became an integral part of those judgments, the unadjudicated offenses necessarily "resulted in a final conviction" as that phrase is used in the expunction statute. Accordingly, J.H.S. and C.E.G.K. have not satisfied the requirements of article 55.01(a)(2) and are not entitled to expunction of their arrest records.

POLICY CONCERNS

Finally, I believe that complete and accurate records of past criminal activity serve an important public purpose. As the supreme court explained in J.T.S.:

Travis County Attorney v. J.S.H.

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